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Welcome to the weekly Financial Services highlights from the Financial Services team for the week ending 19 October 2017.
On 12 October 2017, the European Banking Authority (EBA) published an opinion on Brexit to ensure the consistent application of EU legislation to businesses seeking to establish or enhance their EU27 presence in order to retain access to the EU single market. In the opinion, the EBA addresses a number of relevant policy topics relating to authorisations, the prudential regulation and supervision of investment firms, internal models, outsourcing, internal governance, risk transfers via back-to-back and intragroup operations, and resolution and deposit guarantee scheme issues. The EBA will monitor how the opinion will be applied in practice by authorities and will continue its policy and risk analysis work in relation to the challenges posed by Brexit.
On 18 October 2017 the House of Lords Select Committee heard evidence from City experts on post-Brexit financial regulation and supervision. The Committee is examining how financial stability can be ensured, and whether the UK can gain equivalence or some other form of close relationship in order to preserve market access.
On 17 October 2017, theCityUK published a warning that ‘the value of a transitional deal is disappearing by the day’. With the upcoming European Council meeting, TheCityUK is urging the UK and EU to come to make ‘rapid progress’ on reaching an agreement during the first quarter of 2018. It has outlined what the deal should do and addresses some of the issues that may arise if the UK and EU cannot come to an agreement on transition soon, such as more companies creating contingency plans which will see significant international investment and jobs being taken away from Europe.
On 13 October 2017, the chair of the Treasury Committee, Nicky Morgan MP, wrote to the chief executive of the Financial Conduct Authority (FCA), Andrew Bailey, about the FCA’s forthcoming summary of the skilled persons' report into the treatment of customers in RBS's Global Restructuring Group (GRG). Ms Morgan has proposed an arrangement under which the Committee appoints a legal adviser—Andrew Green QC—to compare the FCA's summary with the underlying report.
On 17 October 2017, Parliament published an exchange of letters (FCA to TSC and TSC to FCA) between the chair of the Treasury Committee, Nicky Morgan MP and the chief executive of the FCA, Andrew Bailey, on the FCA’s skilled person’s report into RBS’s Global Restructuring Group. The FCA continues to resist publication of the report due to a number of concerns, but has produced a summary version. Ms Morgan proposed on 13 October 2017 to appoint an independent legal adviser to assess whether the FCA’s summary was ‘a fair and balanced summary of the underlying skilled person's report’.
On 12 October 2017, the European Commission published a review of the most important aspects of the functioning of the single supervisory mechanism (SSM) for banks. It covers the governance and cost-effectiveness of the SSM, the methods and performance of the European Central Bank (ECB) in its supervisory role, and the interaction of the SSM with relevant EU and international bodies. The report provides an assessment of the setting up and functioning of the SSM, in view of determining its effectiveness as the first pillar of the banking union. The Commission comes to an ‘overall positive assessment’ of the SSM Regulation and the first years of the ECB acting in its supervisory capacity.
On 18 October 2017, HMRC reported that most banks have seen an increase in their tax liabilities in the period between 1 April 2016 and 31 April 2017. This follows the introduction of the bank surcharge on 1 January 2016. HMRC’s annual report on the code of practice on taxation for banks also lists the names of banks that have adopted the code as at 31 March 2017.
On 17 October 2017, the chair of the European Securities and Markets Authority (ESMA), Steven Maijoor, delivered a wide-ranging speech on the capital markets union (CMU), supervisory convergence and how the EU can improve its understanding of trends, risks and vulnerabilities in financial markets. Mr Maijoor also looked briefly at Brexit, saying the UK ‘will not become your average third country’.
The vice-chair of the supervisory board of the European Central Bank (ECB), Sabine Lautenschläger, delivered two speeches at an IMF seminar in Washington DC on 13 and 14 October 2017. In ‘Is small beautiful? Supervision, regulation and the size of banks’, Ms Lautenschläger examined the case for proportionality in banking regulation, concluding that smaller banks should be subject to fewer rules than larger banks, but should not be allowed to hold far less capital proportions, as they also need to remain resilient during an economic downturn. In ‘State of play in the European banking sector’ Ms Lautenschläger said EU banks are better capitalised and have improved their liquidity situation and their governance, and are making slow but steady progress in tackling all the well-known challenges and adapting their business models.
On 18 October 2017, the ECB published a speech given by the chair of the ECB’s supervisory board, Danièle Nouy at a high-level meeting on global and regional supervisory priorities in Basel, saying that while regulation has mostly been driven in recent years by the financial crisis, other factors are involved now, such as digitalisation. Ms Nouy said there were also challenges that stem from before the crisis, including the size of the banking sector, and called for consolidation.
Two representatives from leading central banks have spoken at the 'Rethinking Macroeconomic Policy IV' conference in Washington DC about the impact of regulatory reform since the financial crisis, and challenges for the future. The chief economist at the Bank of England (BoE), Andrew Haldane, and Benoît Cœuré, a member of the executive board of the European Central Bank (ECB), argue that while the current system of 'multipolar regulation' may be effective, the potential trade-offs need to be better understood.
On 12 October 2017, the Association for Financial Markets in Europe (AFME) published a response to the European Commission’s call for urgent completion of the EU banking union, saying it fully supports the Commission’s communication. Clear improvements in financial stability safeguards have been made, AFME said, with banks now much less likely to fail. The priority now should be enabling efficient internal capital allocation within cross-border banks so that resources can flow to where they are most needed by European households, SMEs, and corporates.
On 17 October 2017, the European Commission published an evaluation roadmap for its fitness check of EU reporting requirements in the financial sector, having received feedback from stakeholders that requirements were not fully aligned with one another. This makes reporting unnecessarily complex, costly, and burdensome. Comments on the roadmap are sought by 14 November 2017.
On 16 October 2017, the Prudential Regulation Authority (PRA) issued an update to consultation paper CP16/17: PRA fees and levies: model transaction fees, fees and Financial Services Compensation Scheme (FSCS) levies for insurers and fees for designated investment firms (the CP), first issued in August 2017. The CP sets out the PRA’s proposals relating to periodic fees for designated investment firms, periodic fees and FSCS levies for insurers, and fees in relation to models.
On 13 October 2017, the The EBA published a compliance table indicating which competent authorities comply or intend to comply with the EBA's guidelines on the collection of information related to the internal capital adequacy assessment process (ICAAP) and the internal liquidity adequacy assessment process (ILAAP). The guidelines were published on 3 November 2016.
On 18 October 2017, the EBA updated its list of public sector entities (PSEs) that may be treated as regional governments, local authorities or central governments for the calculation of capital requirements, in accordance with the EU Capital Requirements Regulation (CRR).
On 17 October 2017, HM Treasury published an updated version of its memorandum of understanding on resolution planning and financial crisis management with the Bank of England. The update makes some amendments to the April 2017 version.
On 18 October 2017, the Treasury Committee published details of a letter from its chair, Nicky Morgan MP, to the chief executive of Equifax Limited asking for further details about the scale of the cyber-security breach, and what compensation it will provide. Ms Morgan said Equifax had taken too long to notify those affected by the widespread breach, which has increased the risk that they fall victim to identity theft and fraud.
On 16 October 2017, the Financial Stability Board (FSB) published a summary report on financial sector cybersecurity regulations, guidance and supervisory practices following the results of a stocktake on cybersecurity. The report, accompanied by a detailed analysis of the results of the stocktake, was delivered at the meeting of G20 finance ministers and central bank governors in Washington DC on 14 October 2017.
On 12 October 2017, the ECB published a study of zombie firms and stressed banks, investigating the impact of bank stress on the deleveraging process of non-financial small and medium-sized enterprises (SMEs), with a focus on euro area periphery countries. It shows that the speed and type of corporate deleveraging depends on the interaction between corporate and financial sector health. The paper suggests that stressed banks in poorly performing economies might be more inclined to conduct risky lending to distressed borrowers, ‘possibly in attempts to gamble for resurrection’.
On 12 October 2017, the Futures Industry Association (FIA) published a press release stating it had joined with the Modern Markets Initiative (MMI), the International Swaps and Derivatives Association (ISDA), and the US Chamber of Commerce to express for Congressman Sean Duffy’s legislation to protect access to source code. The bill would require the US Securities and Exchange Commission to obtain a subpoena in order to compel a person to produce or furnish algorithmic trading source codes or other similar intellectual property.
On 17 October 2017, the European Commission opened up a public consultation into speeding up financial investigations to combat organised crime more effectively. The Commission hopes that by speeding up the identification of bank accounts the proceeds of crime can be traced, frozen and confiscated even when transferred to bank accounts located in different countries. The consultation will close on 9 January 2018.
On 18 October 2017, the FCA fined Rio Tinto plc £27.4m for breaching Disclosure and Transparency Rules by failing to carry out an impairment test and to recognise an impairment loss on the value of mining assets it had acquired in its 2012 interim results. In the US, the company and two former executives face SEC fraud charges. Both the US and UK actions relate to the Mozambique investment made by the mining firm in 2011. The FCA found that had Rio Tinto complied with its obligation to carry out the test, a material impairment would have been required to have been disclosed at the time of its 2012 half year financial reporting. Rio Tinto’s financial reporting was therefore inaccurate and misleading.
On 12 October 2017, the FCA published final notices which state that the regulator has banned Mrs Colette Marie Chiesa and Mr John Andrew Gerard Chiesa from working in financial services for integrity failings. Additionally, Mrs Chiesa has been fined £50,000 for attempting to mislead the FCA during an FCA interview.
Commission Implementing Decision (EU) 2017/1857 of 13 October 2017 on the recognition of the legal, supervisory and enforcement arrangements of the USA for derivatives transactions supervised by the Commodity Futures Trading Commission as equivalent to certain requirements of Article 11 of Regulation (EU) No 648/2012 of the European Parliament and Council on OTC derivatives, central counterparties and trade repositories (EMIR) was published in the Official Journal of the EU. The decision shall enter into force on the twentieth day following that of its publication in the Official Journal.
On 13 October 2017, the European Commission published a press release stating that the Commission and the US Commodity Futures Trading Commission (CFTC) have agreed on a common approach regarding certain derivatives trading platforms, and the Commission has adopted an equivalence decision regarding the US framework for non-cleared over-the-counter derivatives. Together with a similar decision by the CFTC for the EU framework, the aim is to avoid a double regulatory burden for these transactions both in the EU and in the US.
On 18 October 2017, ESMA published updated FAQs on Directive 2014/65/EU (MiFID II) Transitional Transparency Calculations (TTC) for all non-equity instruments in accordance with RTS 2 regulatory technical standards on transparency requirements in respect of bonds, structured finance products, emission allowances and derivatives under Regulation (EU) 600/2014 (MiFIR).
The position limits exemption application is now available for completion on the Financial Conduct Authority (FCA)'s Connect webpage. The position limits and reporting regime for commodity derivatives comes into force on 3 January 2018 (Articles 57 and 58 of MiFID II). The regime aims to prevent market abuse and support orderly pricing and settlement conditions by improving transparency and oversight of financial markets.
On 17 October 2017, the European Central Bank (ECB) has issued an opinion on the Commission's proposal for a regulation amending the European Market Infrastructure Regulation (EU) 648/2012 (EMIR). The ECB generally supports the Commission's initiative to introduce a number of targeted modifications to EMIR with a view to simplifying the applicable rules and eliminating disproportionate burdens.
On 16 October 2017, the Bank of England confirmed that its reforms to the sterling overnight index average (SONIA) interest rate benchmark will take effect on Monday 23 April 2018. The reforms will see the Bank taking on the end-to-end administration, including the calculation and publication of SONIA. The coverage of SONIA will be broadened to include overnight unsecured transactions negotiated bilaterally, as well as those arranged via brokers, using the Bank’s sterling money market data collection as the data source.
On 18 October 2017, the European Commission asked the European Supervisory Authorities to issue recurrent reports on the cost and past performance of the main categories of retail investment, insurance and pension products. The Commission says that this would contribute to the objective of the capital markets union action plan to foster the participation of retail investors in capital markets by supporting the assessment of the net return of retail investment products and the impact of diverse fees and charges.
On 17 October 2017, the International Swaps and Derivatives Association (ISDA) published a conceptual version of its ISDA Common Domain Model (CDM). The ISDA CDM aims to be a first step towards realising the potential for new technologies such as distributed ledger and smart contracts to replace current derivatives market infrastructures, which ISDA describes as old, complex, duplicative and heavily reliant on manual intervention and reconciliation.
On 13 October 2017, the chief executive of the FCA, Andrew Bailey, responded to a letter from the chair of the Treasury Committee, Nicky Morgan MP, and the chair of the Business, Energy and Industrial Strategy Committee, Rachel Reeves MP, about the FCA's consultation on proposals to create a new category within its premium listing regime. For further information see LNB News 13/10/2017 90.
On 16 October 2017, ESMA published an updated guide to the financial instruments reference data system (FIRDS). The guide contains instructions on access and download of full and delta reference data files.
On 13 October 2017, ESMA updated its Benchmarks Regulation webpage to include new information about its plans to publish a register of administrators and third-country benchmarks, in accordance with Article 36 of the Benchmarks Regulation.
On 12 October 2017, the EBA made corrections to annex 1 of its implementing technical standards (ITS) on benchmarking of internal approaches, which had been amended on 4 May 2017 to define the benchmarking portfolios for the 2018 benchmarking exercise. The EBA has eliminated some duplicate portfolio identifiers (IDs) which might lead to technical and practical problems for data validation and when mapping portfolio IDs to the relevant internal models applied by banks.
On 13 October 2017, the International Capital Market Association (ICMA) warned in its latest quarterly reportthat market participants outside the EU may not yet fully appreciate the extraterritorial impact of MiFID II and that many are not yet ready to comply with its provisions, which come into effect on 3 January 2018.
On 17 October 2017, the ICMA welcomed a consultation report by the International Organization of Securities Commissions (IOSCO) on regulatory reporting and public transparency in the secondary corporate bond markets. While ICMA endorses IOSCO’s assertion that ‘public transparency and accessibility to information are key components of robust capital markets’, it adds that transparency is ‘not an end in itself’.
On 13 October 2017, ESMA published the responses received to its three consultation papers on technical advice under the new Prospectus Regulation, which were published in July 2017. The consultation papers contained draft technical advice on the format and content of the prospectus, on the EU growth prospectus and on scrutiny and approval.
On 12 October 2017, the Financial Markets Law Committee (FMLC) wrote to the Bank of England (BoE) concerning the BoE working group's white paper, 'SONIA as the RFR and approaches to adoption'. The FMLC takes the view that the issues of legal risk which have been addressed by the FMLC over the past five years could usefully bear further discussion and consideration in the context of some of the issues addressed in the white paper—in particular, with respect to the working group's recommendation that the potential scope for the transition of legacy contracts which currently reference LIBOR to the sterling overnight index average (SONIA) be explored.
On 12 October 2017, the Futures Industry Association (FIA) issued a press release, together with the International Swaps and Derivatives Association (ISDA), saying it has sent comments to the US Fed Board of Governors expressing serious concerns with proposed changes to the mandatory Banking Organization Systemic Risk Report form (FR Y-15) that would affect the treatment of client-cleared over-the-counter (OTC) derivatives transactions for purposes of the capital surcharge (the G-SIB surcharge) imposed on US global systemically important banking organisations (G-SIBs).
On 16 October 2017, ESMA announced that it is seeking candidates to represent the interests of financial market participants (one post) and academics (one post), as members of its Securities Markets Stakeholders Group (SMSG). The SMSG helps to facilitate consultation between ESMA, its board of supervisors and stakeholders on ESMA’s areas of responsibility, and provides technical advice on policy development. This helps to ensure that stakeholders can contribute to the formulation of policy from the beginning of the process.
On 18 October 2017, the FCA published the results of its Financial Lives Survey 2017, the FCA’s largest tracking survey of consumers and their use of financial services. The aim of the survey is to provide the FCA with unique insights into people’s experiences of retail financial products and services, and ultimately help the FCA meet its objectives. It draws on responses from just under 13,000 UK consumers aged 18 and over.
On 16 October 2017, the FCA published details of a speech given by its director of life insurance and financial advice,, Linda Woodall, given to mark the launch of the Ageing Population occasional paper. Ms Woodall said that while older consumers have diverse needs and preferences and there is no ‘one size fits all’ solution, there are some issues and access barriers that are more relevant for older consumers. The FCA’s research found that older consumers’ financial services needs are not being fully met, resulting in exclusion, poor customer outcomes and potential harm.
On 13 October 2017, the FCA updated its mortgages market study webpage, indicating that it now expects to publish the interim report in spring 2018 and the final report in Q4 2018.
On 17 October 2017, the Committee on Economic and Monetary Affairs of the European Parliament (ECON) announced that it has approvied draft no-objection decisions for two delegated regulations under the Insurance Distribution Directive (EU) 2016/97 (IDD), which include requests for the European Commission to assess whether the application date of IDD can be postponed to 1 October 2018. ECON has not proposed moving the deadline for transposition of IDD from 23 February 2018.
On 17 October 2017, the PRA published a policy statement (PS) which provides feedback on responses to consultation paper 7/17 ‘Solvency II: Data collection of market risk sensitivities’ and includes a link to the final supervisory statement 7/17.
On 18 October 2017, the PRA announced that it had held three roundtables in September 2017 inviting insurers, investors, credit analysts, and equity analysts to discuss the first round of Solvency and Financial Condition Reports (SFCRs) published by EU insurers in 2017.
On 13 October 2017, a corrigendum to Commission Delegated Regulation (EU) 2017/1542 of 8 June 2017 amending Delegated Regulation (EU) 2015/35 concerning the calculation of regulatory capital requirements for certain categories of assets held by insurance and reinsurance undertakings (infrastructure corporates) was published in the Official Journal of the EU.
On 13 October 2017, Draft regulations were published implementing a new regulatory and tax framework for insurance linked securities have been laid before Parliament. The draft Risk Transformation Regulations 2017 and Risk Transformation (Tax) Regulations 2017 are intended to help cement the UK's position at the forefront of the global reinsurance business.
On 17 October 2017, the Financial Stability Board (FSB) has published a report by the FSB Regional Consultative Group for Europe on the functioning, vulnerabilities and future challenges for private pension schemes in Europe. The report considers the heterogeneous nature of private pension systems across Europe, the different regulatory regimes and the vulnerabilities that they could be exposed to. It aims to provide a solid basis for discussions on the features characterising pension schemes that may impact the functioning and the stability of the financial system and therefore the real economy, along with possible ways to improve their robustness, resilience and efficiency.
On 13 October 2017, a roadmap of what needs to be done to give everyone in the UK online access to all of their pension information was been set out by the Association of British Insurers, as it calls for firm government direction on its plans for pensions dashboards.
On 13 October 2017, the EBA has published final guidelines on the complaints procedures to be followed by competent authorities (CAs) to ensure effective compliance by payment service providers (PSPs) with the revised Payment Services Directive (PSD2). The guidelines govern the process through which payment service users and other interested parties can submit complaints to CAs with regard to PSPs' alleged infringements of PSD2.
After reviewing the responses it received to its August 2017 consultation on regulatory fees, on 16 October 2017, the Payment Systems Regulator (PSR) announced it will require more time before it publishes the next consultation. The PSR says it wants to consider the proposals in greater depth and identify the right balance among stakeholder views.
On 17 October 2017, the Wolfsberg Group has updated its correspondent banking due diligence questionnaire. The Group's member banks have settled on one due diligence standard for international correspondent banking which is being made available to know-your-client utilities and the wider banking community. The Group has also updated its Payment Transparency Standards. The revised standards clarify roles, responsibilities and expectations on originators, eg what it means to include name, address and account number. The standards also set out expectations on intermediaries and beneficiaries, ‘on behalf of’ payments and Money or Value Transfer Services, and provide a view on the use of legal entity identifiers.
On 18 October 2017, the European Payments Council (EPC) published an updated version of the 2017 Single Euro Payments Area (SEPA) Direct Debit (SDD) rulebook, which replaces version 1.0, and takes effect on 19 November 2017. Version 1.0 of the SDD rulebook was originally published in November 2016 along with the SEPA Credit Transfer rulebook.
On 13 October 2017, the City of London Corporation, with KPMG, released a report calling on the government to secure a sector deal for FinTech to further cement the UK’s position as a global leader in this area. The report recommends that industry work with government to develop a single policy vision for the sector, co-ordinated open standards, enhanced regional engagement and talent development, and greater access to capital for FinTech businesses.
On 18 October 2017, the US Commodity Futures Trading Commission (CFTC) released ‘A CFTC primer on virtual currencies’. This is the first of a series that LabCFTC will release to provide fundamental information about FinTech innovation. LabCFTC was launched by the CFTC in May 2017 and aims to facilitate market-enhancing FinTech innovation, fair market competition, and proactive regulatory excellence and understanding of emerging technologies.
On 17 October 2017, the Bank of International Settlements published a speech given by the assistant governor of the Central Bank of Malaysia, Marzunisham Omar, on Islamic finance and FinTech, in Kuala Lumpur on 11 October 2017. Mr Omar said the sector is still in its infancy but growing, with an increasing number of FinTech start-ups, innovation labs and incubators that are based on the values and principles of Islamic finance. FinTech has much to offer the sector, Mr Omar said, highlighting its role in creating risk-based economies, bringing new sources of capital into play, and enabling the matching of funds within the social financing space.
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